P. v. Castillo CA5
By
mk
12:01:2018
Filed 9/7/18 P. v. Castillo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE COURT
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Ruben Castillo argues only that his conviction for receiving stolen property (Pen. Code, § 496, subd. (a)), The People concede and we agree. We reverse the conviction for receiving stolen property, and affirm the judgment in all other respects.
FACTS
On October 24, 2016, Virginia Gomes, her daughter, Mariajose Gomes, and her mother, Vilma Zambrano, returned to their home. While Virginia and Vilma were taking items out of their car, Mariajose ran to the house, unlocked the door and went inside. She immediately ran back outside and screamed that there was a man inside the house.
Mariajose saw the perpetrator take off on a bicycle and pointed him out to her mother. He was carrying a black laptop case in his left arm, which Virginia recognized as hers. Neither Virginia nor Mariajose saw his face. Virginia called 911 at approximately 2:00 p.m.
At about 2:13 p.m., Bakersfield Police Officer Trent Alexander responded to the burglary call and observed appellant, whose clothes matched the description of the burglar, riding a bicycle. Appellant was carrying a medium-sized duffel bag hanging off one of the handlebars. Alexander detained him. After appellant consented to a search of the duffel bag, the officer found the items that the victims later identified as having been taken from the residence, including a smart phone, laptop, iPad and DVD player.
Virginia testified that the value of the smart phone was $250, the laptop was $850, the iPad was $600, and the DVD player was $150.
On January 19, 2017, an amended information was filed charging appellant with first degree residential burglary (§§ 459 & 460/count 1) and alleging that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(21); larceny of a value exceeding $950 (§ 487, subd. (a)/count 2); and receiving stolen property valued at greater than $950 (§ 496, subd. (a)/count 3). The amended information also alleged that appellant had suffered two prior prison terms (§ 667.5, subd. (b)), and a prior strike conviction (§§ 667, subds. (c), (e); 1170.12). The amended information further alleged a special allegation that a person other than an accomplice was present in the residence at the time of the burglary, making the burglary a violent felony under section 667.5, subdivision (c)(21).
On January 25, 2017, a jury found appellant guilty on all three counts and also found true the special allegation that a person was present at the residence during the burglary.
In a subsequent court proceeding, the two prior convictions were found true; the prior strike was found not true.
On February 27, 2017, the court denied probation and sentenced appellant to the upper term of six years on count 1, and added one year for each of the two prior prison terms, for a total term of eight years. The court imposed the upper term of three years each for counts 2 and 3, but stayed both terms pursuant to section 654.
A timely notice of appeal was filed on February 28, 2017.
DISCUSSION
Appellant was convicted of grand theft (§ 487/count 1) and simultaneously convicted of receiving that same property (§ 496, subd. (a)/count 3).
Section 496, subdivision (a), provides in pertinent part:
“A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.” (§ 496, subd. (a).)
The Attorney General correctly concedes:
“In 1992, the Legislature codified the common law rule that a defendant may not be convicted of stealing and receiving the same property. [Citations.] When the police stopped appellant … within 19 minutes of the burglary, he had a duffel bag with a laptop, Ipad [sic ], DVD player, smart phone, medications and gray bag. … Because the taking of this property also formed the basis for appellant’s conviction for theft, his section 496 conviction must be reversed.
“Based on the foregoing, appellant’s conviction and sentence for receiving stolen property should be reversed. Respondent respectfully requests that the judgment be affirmed in all other respects.”
For these reasons, we agree with the parties that the conviction on count 3 must be reversed.
DISPOSITION
Appellant’s conviction for receiving stolen property pursuant to Penal Code section 496 is reversed. The superior court is directed to file an amended abstract of judgment reflecting this reversal and forward certified copies to the appropriate authorities. The conviction is affirmed in all other respects.
Description
Appellant Ruben Castillo argues only that his conviction for receiving stolen property (Pen. Code, § 496, subd. (a)), based upon his possession of the items stolen during a burglary for which he was convicted (§§ 459 & 460), must be reversed. The People concede and we agree. We reverse the conviction for receiving stolen property, and affirm the judgment in all other respects.
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